LOUISIANA WILLS AND TRUSTS REQUIREMENTS
Statutory Authority.
Wills:ย Louisiana Civil Code, Book III, Title II, Chapter 6.
Trusts:ย Louisiana Trust Code, La. R.S. 9:1721, et. seq.
Louisiana Will Requirements.
Due to Louisianaโs civil law system, the stateโs laws relating to wills are somewhat unique and generally stricter than in most other jurisdictions.ย Documents which do not satisfy all statutory formalities are wholly ineffective under Louisiana law.
Ordinary written Louisiana wills are called โnotarial testaments.โ Anyone at least 16 years of age and with adequate mental capacity can execute a notarial testament.ย Louisiana applies different methods for executing a notarial testament depending on the testatorโs status when creating the document.ย The five different forms depend on whether the testator can read, is physically capable of signing, is visually impaired and/or deaf and can or cannot read Braille or understand sign language.
Louisiana wills generally must be dated and signed by the testator on each page and at the end of the document.ย A third party may not sign on the testatorโs behalf in Louisiana, except to the limited extent that testator is physically incapable of signing.ย The testatorโs final signature must follow the testatorโs attestation regarding the willโs signing, witnessing, and intent.
Louisiana wills must also be signed by two witnesses and by a notary, all of whom must include an attestation declaring that all formalities for a valid will have been met.ย Witnesses must be mentally competent, able to see, at least 16 years of age, and able to sign their names.ย Witnessing by an interested witness does not invalidate a Louisiana will.ย However, a bequest to an interested witness is voidโthough an interested witness can still inherit an interest up to the amount he or she would have received had the testator died intestate.
Louisianaโs Civil Code suggests the following language for attestation clauses: “In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this ____day of _________, ____.”ย
Louisiana law interprets wills under their literal terms, and, when a provisionโs meaning is ambiguous, the goal is always to give effect to the testatorโs intent.ย ย
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Amendment, Revision, and Revocation of Louisiana Wills.
A Louisiana testator can revoke a will at any time up until death.ย Revocation can be accomplished through physical destruction of the document, statement of the intent to revoke a will in a subsequent testamentary document, or a clear revocation in a document signed, dated, and written entirely in the testatorโs handwriting.
Revocations of individual provisions can be accomplished through a declaration in a subsequent testamentary document, a later disposition that is incompatible with an earlier provision, disposition during life of the property subject to a provision in a will, or a clear revocation written onto the will and signed by the testator.ย If a Louisiana will includes contradictory provisions, the provision written last takes precedence.ย More specific dispositions take precedence over more general dispositions.
If a Louisiana testator is divorced after executing a will, provisions in favor of the former spouse are revoked unless the testator specifically provides otherwise.
Other than as expressly authorized under the Civil Code, any other amendment or modification to a Louisiana will can only be made through execution of a valid testamentary document.
Holographic and Oral Wills.
Louisiana law recognizes holographic (referred to as โolographicโ) wills.ย To be a valid holographic will, a document must be written entirely in the testatorโs handwriting and must be dated and signed at the end by the testator.ย A Louisiana holographic will must also express the testatorโs intent that it be treated as a will.
Louisiana law no longer recognizes oral (or โnuncupativeโ) wills.
Louisiana Trust Requirements.
Louisiana trusts are governed by the Louisiana Trust Code. La. R.S. 9:1721, et. seq. ย In general, as a consequence of Louisianaโs unique civil law system, Louisianaโs Trust Code is much more comprehensive and detailed than the comparable trust statutes in other states.ย ย
As with other jurisdictions, Louisiana trusts involve three principal parties:ย settlor, beneficiary, and trustee.ย Under Louisiana law, there can be some overlap between the three roles, and, in some cases, an individual can have all three statuses with regard to a single trust.
The โsettlorโ is the creator of the trust.ย In most cases, the settlor is the individual who contributes property to the trust when it is created, though an individual can contribute property to an existing trust without being a settlor.ย ย
The โbeneficiaryโ of a trust is the person or persons who stand to benefit from the property held in the trust.ย The identity of a beneficiary of a Louisiana trust must be objectively ascertainable from the trust instrument (unless specifically authorized otherwise by statute).
The โtrusteeโ is the person who holds legal title to trust property.ย Under Louisiana law, a trustee has a โfiduciary dutyโ with regard to property held in the trust.ย Trustees have a duty to preserve and maintain trust assets and to manage trust property in conformance with the terms of trusts.ย Trustees must act in the beneficiariesโ best interests with regard to the trust and manage assets in accordance with the โprudent investorโ standard.ย Louisiana law allows trustees to be granted discretion in exercising their powers.ย For instance, a trustee can be granted discretion with regard to distributions of trust property to beneficiaries. Otherwise, trustees must always act consistently with the terms of the trust instrument.
Louisiana recognizes living (โinter vivosโ) trusts and testamentary trusts (trusts created by will).ย Louisiana trusts can include any provisions not specifically forbidden by statute or generally โagainst public policy or good morals.โ
Testamentary trusts in Louisiana must be created in accordance with one of the statutorily-prescribed forms for testamentary distributions and can only be created by settlors who have capacity to create a testamentary document.ย ย
Living trusts come into existence upon execution of a trust instrument and can only be created by โauthentic actโ or by a signed writing made in the presence of two witnesses and acknowledged by the settlor or by one of the attesting witnessesโ execution of an affidavit.ย While no specific technical language is required, a trust instrument must plainly indicate the settlorโs intention to create a trust.
Living trusts can be either revocable or irrevocable.ย With revocable trusts, the settlor retains the right to modify or revoke the trust after it is created.ย Irrevocable trusts cannot later be modified or revoked by the settlor.ย A settlor of a Louisiana trust must specifically reserve the power to modify or revoke the trust for the trust to be treated as a revocable trust.
Louisiana trusts may be terminated at the time or upon specified occurrences set forth in the trust instrument.ย Under certain limited circumstances, a trustee can petition a court to terminate the trust.ย Louisiana law does not allow modification or termination of trusts upon consent of all interested parties, unless otherwise authorized by the trust instrument.ย Louisiana law also provides for automatic termination upon the death, or specified numbers of years after the death, of the last beneficiary and/or settlor.
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Estate Taxes:ย Louisiana does not impose any estate or inheritance taxes.ย Large Louisiana estates may still qualify for the federal estate tax.
Simplified Probate:ย The process called โprobateโ in most states is referred to as โsuccessionโ in Louisiana.ย Louisiana estates with a total value under $125,000 may qualify for the simplified โsmall successionโ process.ย Estates qualify if the decedent was intestate (or died while residing in another state where probate was opened) and the heirs are the decedentโs close relatives.ย Qualifying estates can be administered through an affidavit, without the ordinary, more extensive succession process.ย ย
โForced Heirs:โ Under Louisiana law, a โforced heirโ is someone a testator cannot legally disinherit absent โjust causeโ for the disinheritance.ย A testatorโs children under 24 years old (or who are mentally or physically incapable of caring for themselves) are forced heirs.ย Louisianaโs forced heirship law reserves a certain fraction of a decedentโs estate for forced heirs, with the precise fraction depending on how many forced heirs there are.ย The Civil Code includes a list of conduct considered โjust causeโ for disinheritance of forced heirs, including physical violence or cruel treatment toward the parent, the forced heirโs criminal conviction for serious crimes, or, if the child is a minor, the childโs marrying without the parentโs consent.
Non-Probate Transfers:ย Though living trusts are an effective means of transferring assets outside probate, Louisianaโs other options for transferring assets outside probate are more limited than most other states.ย Louisiana law does not recognize joint tenancy with a right of survivorship, so co-ownership of assets is generally ineffective for bypassing probate.ย ย
Certain accounts with financial institutions (like a checking or savings account with a bank or credit union) can be assigned a POD (payable-on-death) designation.ย The designation gives the institution authority to transfer the account proceeds to the beneficiary upon the ownerโs death, though POD designations do not necessarily supersede other heirsโ interests in the relevant assets.ย ย
In most states, TOD (transfer-on-death) designations allow for automatic transfer of certain financial assets like registered securities and brokerage accounts to a beneficiary upon an ownerโs death.ย Louisiana law does not recognize TOD designations for those types of assets.ย ย
Louisiana does recognize beneficiary designations for assets like retirement accounts, life insurance and annuities.ย When a beneficiary is named, he or she automatically takes ownership of the asset upon the original ownerโs death, without need of probate (or โsuccessionโ) proceedings.
Transfer-on-Death (TOD) Deeds and Vehicle Titles: Louisiana does not recognize TOD designations on real estate deeds or vehicle titles.
Community Property: Because Louisiana is one of the nationโs few โcommunity propertyโ states, a married individualโs assets often include a significant amount of marital property jointly owned by the couple.ย Community property includes most assets acquired by either spouse during the marriage, unless obtained via gift or inheritance.ย If a decedent spouse is intestate, his or her half-interest in the coupleโs community property will be inherited by the other spouse.ย However, under Louisiana law, the inherited interest is limited to a โusufructuary,โ which is similar to a life estateโthe surviving spouse owns and controls the inherited community property for the remainder of his or her life or until he or she remarries.ย A surviving spouse of an intestate Louisiana decedent has lower priority for inheritance of the decedentโs separate property compared to most other states.ย Spouses can elect to opt out of community property treatment through a valid prenuptial agreement.
Marital Portion:ย The โmarital portionโ under Louisiana law is similar to the spousal elective share in many other states.ย A surviving spouse can claim the marital portion when the decedent spouse was substantially wealthier than the surviving spouse.ย The marital portion is measured as a fraction of the estate, depending on whether the decedent left children and, if so, how many.ย The amount is reduced for any other inheritance received from the decedent by the surviving spouse and any payments received on account of the death.
Creating a will or trust does not have to be difficult or intimidating.ย However, certain circumstancesโlike second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests (to name a few)โcan add a layer of complexity and result in unforeseen long-term consequences.ย Whenever any out-of-the-ordinary issues are present, itโs a good idea to consult with an experienced attorney familiar with and licensed under the laws of the relevant jurisdiction.
